The Medical Legal Expert

by Bonn Law

I represent injured and disabled people in legal cases. A necessary part of any legal action involving an injured person is the medical legal expert. These are doctors and other medical professionals who provide expert evidence about an injured person’s impairments, limitations, cause of impairments and future prognosis. Medical legal experts are paid privately and not through OHIP or some other government funding.

Insurance companies routinely hire medical experts to review an injured person’s application for or ongoing entitlement to benefits. They become involved in all types of cases, from medical malpractice, motor vehicle collisions/accidents, no-fault accident benefits, long-term disability disputes and other personal injury legal cases.

There are some very good and honourable medical professionals who provide objective evidence that help the parties fairly settle disputes. However, as Globe and Mail report, Kathy Tomlinson wrote a couple of years ago in her Globe Investigation, “Licensed to bill: How doctors profit from injury assessments that benefit insurers”:

“Doctors are taking millions of dollars a year by putting their names to accident injury reports for the insurance industry. Some of these reports unfairly discredit injury claims, leaving victims intimidated and exhausted. But because the majority settle out of court, the practice is hidden from public scrutiny.”

In her article, Ms. Tomlinson writes about Dr. Howard Platnick:

“He seldom treats patients, but Howard Platnick still brings in as much as $800,000 a year working as a doctor.

The Toronto practitioner makes his living compiling reports on accident victims for auto-insurance companies. A review of about three dozen of Dr. Platnick’s cases by the Globe and Mail shows he usually finds the injuries suffered by claimants aren’t significant.

In a good year, Dr. Platnick has said, he gets roughly 1,500 bookings, which he suggests he assesses six accident victims in an average workday. Approximately 300 of those are “paper reviews” in which he’s sent a persona’s file and evaluates their condition without ever seeing them.

Dr. Platnick is among a raft of physicians whose reports have been rejected by judges and arbitrators – some repeatedly – for being inaccurate, unfairly biased against the injured person, or written by someone else. And yet those doctors continue to get work.

Case records who Dr. Platnick talked another doctor into altering her report in an insurance company’s favour, then had her back-date it to when she wrote her initial assessment. In another instance, he made no mention of the two car crashes the victim had actually had, but referenced an earlier accident that never happened.

He declared a truck driver could go back to work, after noting the man could no longer handle driving long distances.

Rules governing doctors stipulate any such assessments should be independent and unbiased. However, records show State Farm e-mailed Dr. Platnick last year, thanking him for “co-operating with us” to get a clam settled, saying “your involvement was essential to our efforts.”

Ms. Tomlinson describes in her article Dr. Platinick’s involvement in Laura Carpenter’s injury case. Ms. Tomlinson writes:

“Laura Carpenter found out how seriously those practices affect victims, after Dr. Platnick wrote a brief “summary” for her insurance company declaring there was “consensus” among a team of doctors that she was not catastrophically injured. He came to that conclusion without ever meeting her. That is a common, accepted practice among doctors doing these assessments.

TD Insurance ended Dr. Carpenter’s coverage, a month after it received Dr. Platnick’s summary. A family doctor herself, Dr. Carpenter then went five years without full treatment for her injuries, before she had a chance to show TD – at a long-awaited arbitration hearing – the “consensus” his report cited didn’t exist.”

Ms. Tomlinson notes in her article, “Confronted years later with the missteps in her case, TD quietly settled with Dr. Carpenter.”

We need medical experts for legal cases. They provide the necessary medical evidence and expertise to understand injured persons’ impairments and damages. However, we need more accountability on the experts. The law needs to evolve to allow us to cross-examine these experts on their biases and let the jury know about past cases where they were not found to be credible. That is the only way we can balance the scale and minimize the prejudice caused by biased experts.